Attorney General v. Brown

• Decision Date: 19 August 1987
• Parties: ATTORNEY GENERAL v. Harold BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1103

511 N.E.2d 1103

400 Mass. 826

ATTORNEY GENERAL v. Harold BROWN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 6, 1987.

Decided Aug. 19, 1987.

Nathan Z. Dershowitz, New York City (Ellen J. Schneider, New York City & Steven M. Brody with him), for defendant.

Maria I. Lopez, Asst. Atty. Gen., for Atty. Gen.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ. LYNCH, Justice.

The defendant, Harold Brown, appeals from a decision of a judge in the Housing Court granting summary judgment in favor of the Attorney General. In October, 1983, the Attorney General filed suit against Harold Brown, alleging violations of G.L. c. 151B, § 4(6) and (10), ¹ and seeking declaratory and injunctive relief and damages for "Section 8 certificate holders." ² The Attorney General claimed that Brown violated G.L. c. 151B, § 4(10), which prohibits landlords from discriminating against recipients of public assistance or housing subsidies including rental assistance "solely because the individual is such a recipient." ³ It was further alleged that, because most of such recipients are members of minorities, Brown violated G.L. c. 151B, § 4(6), which prohibits certain persons, including landlords of multiple dwelling or contiguously located housing accommodations from refusing to rent or to lease to, and from discriminating against, individuals "because of the race, religious creed, color, national origin, sex, age, ancestry or marital status" of such persons. On April 1, 1986, the judge granted the plaintiff's motion for summary judgment and ruled that Brown was in violation of G.L. c. 151B, § 4(6) and (10). Brown appealed and we granted direct appellate review. We reverse.

1. Federal Preemption. Brown claims that G.L. c. 151B, § 4(10), is preempted by Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f(a) (1982), and therefore is void under the supremacy clause of art. 6 of the United States Constitution. Although the issue was not raised prior to this appeal, we may consider such an issue in exceptional circumstances. See Albert v. Municipal Court of the City of Boston, 388 Mass. 491, 494, 446 N.E.2d 1385 (1983). ⁴ Since the issue of preemption could be dispositive of the case, we address it at the outset.

There are several theories under which a State statute may be preempted by Federal law. Congress may expressly state that State law is preempted, see Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), or an intent to preempt the field may be inferred where the scheme of the Federal legislation is so comprehensive that it creates the inference that Congress "left no room" for State regulation in that area, see Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). See also California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987). Neither theory applies here. There is nothing in the Federal statute that explicitly preempts State regulation. In fact, the Federal statute envisions participation by States in the implementation of the program, thus, reducing the persuasiveness of the argument in favor of preemption. See Kargman v. Sullivan, 552 F.2d 2, 11 (1st Cir.1977). Furthermore, although the Federal scheme is comprehensive, there is no inference that Congress intended that there be no State regulation. See New York State Dep't of Social Servs. v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2513-14, 37 L.Ed.2d 688 (1973).

Federal law may also preempt State law to the extent that it actually conflicts with the Federal law. California Fed. Sav. & Loan Ass'n v. Guerra, supra at 689. A conflict may be found where compliance with both State and Federal regulations is physically impossible, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where the State statute "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See Jones v. Rath Packing Co., supra at 525-526, 97 S.Ct. at 1309-10; Grocery Mfrs. of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 81, 393 N.E.2d 881 (1979). Since compliance with both statutes is not impossible, we shall focus our inquiry on whether the State statute is an obstacle to the accomplishment of the Federal purpose.

"[P]re-emption is not to be lightly presumed." Guerra, supra at 689. There must be "actual, impermissible conflict," not merely "unsupported pronouncements as to [Federal] policy." Grocery Mfrs. of America, Inc., supra at 82, 393 N.E.2d 881, quoting Kargman v. Sullivan, supra at 6. In addition, exclusive Federal power is less likely to be intended in areas of local, rather than national, importance. See International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 812, 93 L.Ed.2d 883 (1987) (control of interstate pollution primarily matter of Federal law); Goldstein v. California, 412 U.S. 546, 553-554, 93 S.Ct. 2303, 2308-09, 37 L.Ed.2d 163 (1973) (power to grant copyrights national in scope); Kargman v. Sullivan, supra at 11.

Brown claims that the State statute, as interpreted by the Housing Court judge, mandates a landlord's participation in a voluntary Federal program and, therefore, violates the supremacy clause. The Attorney General claims that there is nothing in the Federal statute that would prohibit States from requiring landlords to participate in the Section 8 program where they offer apartments that fall within the Section 8 fair market rents.

The State statute does not conflict with the Federal statute and is not preempted thereby. Both G.L. c. 151B, § 4(10) and 42 U.S.C. § 1437f, share a common goal, i.e., affordable, decent housing for those of low income. While the Federal scheme envisions voluntary participation, such is not necessarily the "heart" of the Federal scheme, as the defendant suggests. That terminology would more appropriately be applied to the goals and purposes of the scheme which are "aiding lower-income families in obtaining a decent place to live and ... promoting economically mixed housing." 42 U.S.C. § 1437f(a).

It does not follow that, merely because Congress provided for voluntary participation, the States are precluded from mandating participation absent some valid nondiscriminatory reason for not participating. The Federal statute merely creates the scheme and sets out the guidelines for the funding and implementation of the program by the United States Secretary of Housing and Urban Development (HUD) through local housing authorities. It does not preclude State regulation.

In Massachusetts Medical Soc'y v. Dukakis, 637 F.Supp. 684, 699 (D.Mass.1986), aff'd, 815 F.2d 790 (1st Cir.1987), the court found nothing in the Federal Medicare Act precluding States from prohibiting balance billing even though the Federal act does not. The court reasoned that the mere fact that the Federal act contained no prohibition of balance billing did not mean that the States could not prohibit such a practice. Id. ⁵ Similarly, in Kargman v. Sullivan, supra, the United States Court of Appeals for the First Circuit upheld a Boston rent control ordinance against a challenge that it was preempted by Federal housing legislation which set the maximum rents for federally subsidized apartment complexes. Id. at 4, 13. The court ruled that the HUD rents were not minimum rents and that Boston was not necessarily foreclosed from creating a rent control system mandating lower rents, id. at 7, and that no actual conflict was demonstrated even though "some adverse financial consequences" to the landlords did exist, id. at 13.

The present case is distinguished from Rose v. Arkansas State Police, 479 U.S. 1, 107 S.Ct. 334, 93 L.Ed.2d 183 (1986), where the Court concluded that the State statute conflicted with the Federal. In that case, the Public Safety Officers' Death Benefits Act, 42 U.S.C. §§ 3796 et seq. (1982) provided for benefits "in addition to any other benefit that may be due from any other source," thus clearly manifesting an intent to provide additional benefits over those granted by the State. Rose v. Arkansas State Police, supra at 335-336. A State statute that offset State benefits by the amount of the benefit provided by the Federal act clearly conflicted with the purpose of the Federal act.

In the present case, the defendant has failed to demonstrate an actual impermissible conflict. In fact, the Federal scheme envisions State and Federal coordination. In Kargman v. Sullivan, supra at 11, the court saw the "federal housing legislation [which] creat[ed] the network of subsidized housing law [as] superimposed upon and consciously interdependent with the substructure of local law relating to housing." Thus, we conclude that G.L. c. 151B, § 4(10), is not preempted by Federal law and does not violate the supremacy clause.

2. Summary judgment. In his order of April 1, 1986, the Housing Court judge found that the Boston Housing Authority (BHA) and the Executive Office of Communities and Development (EOCD), which issue Section 8 certificates in the Boston area, currently provide Section 8 assistance payments on behalf of 3,670 and 2,826 eligible families, respectively. Approximately 50% of the families who received Section 8 certificates through BHA and EOCD are unable to secure housing for which they can use their certificates, "principally because of discrimination against Section 8 certificate holders." He also found that Section 8 certificate holders are "overwhelmingly blacks and other minorities." ⁶

The judge further found that Harold Brown, who owns or has a general partnership interest in 8,000 residential units of which 3,000 are in the Allston-Brighton area of Boston, refused to process rental applications from holders of Section 8 certificates. Between July, 1982, and...